OSHA Emergency Temporary Standard for employers with 100 employees: Preliminary Insights
As you likely know, Federal OSHA has published its new Emergency Temporary Standard (ETS) that requires private employers with more than 100 employees to mandate COVID-19 vaccines, or require at least weekly COVID testing for unvaccinated employees, among other things. Here is some preliminary information for employers.
Basics: The ETS was published in the Federal Register on Friday November 5, 2021. See the link below to the OSHA Website. OSHA has published several documents to assist including an executive summary, FAQs, and sample policies.
The ETS requires that employees be fully vaccinated by January 4, 2022 or have a plan in place to require unvaccinated employees to be tested at least weekly and wear a face covering. Employers have other obligations that take effect December 4, 2021 including providing paid time off for employees to get vaccinated.
What about fact that an Appeals Court has already blocked the ETS from taking effect? On Saturday November 6, the Fifth Circuit Court of Appeals issued a short Order, in a case styled BST Holdings v. OSHA, blocking the ETS from taking effect pending further judicial review. This is not the final word. Over the next few days, weeks, and likely months, look for a plethora of additional (and likely conflicting) court rulings in similar cases pending throughout the U.S. Ultimately, the Federal Courts will likely agree to combine the cases and assign them to a single court, or the U.S. Supreme Court may become involved.
So what should we do now? I do not recommend that you do nothing under the theory that the ETS will not survive. I believe it wise to begin to educate yourself on the ETS. There are several important decisions you need to make, and steps that will take some time to develop if the ETS does ultimately take effect. With this in mind, here are a few additional thoughts.
Read the Regulation (it’s only 5 pages): The Federal Register publication is 154 pages. However, the Rule itself is a mere 5 pages. As you will see from the table of contents, the bulk of the publication contains helpful information in which OSHA explains, in great detail, its view of the world and the facts and opinions that led it to publish the ETS.
Evaluate whether to Mandate or Test. A critical decision you will need to make is whether you will mandate the vaccine for your employees OR implement a weekly testing protocol for employees who are not fully vaccinated. (I do not think it a viable option to ignore the ETS. The penalties for noncompliance can be quite substantial.)
If you decide to mandate, you will also need to ensure that you implement a protocol that allows employees to request accommodations for certain medical or religious reasons.
If you decide not to mandate, you will need to determine how the testing process will work and who will pay for the weekly tests.
What else? For now, please also know that the ETS requires employers to implement and publish a written policy that includes information on vaccines, testing, face coverings, and that provides certain information to employees. You will also need to inform employees that they can receive paid time off to be vaccinated and also paid sick leave to recover from any side effects following a shot. You will also need to be thinking about a process to learn the vaccination status of your employees.
We will do our best to keep employers informed of further developments.
Written by Todd A. Leeson